Friday, April 29, 2005

There are two stories which seem to have been triggered by Google's plans to digitise major academic libraries.

The first from an Aussie paper, the Sydney Morning Herald (which unfortuantely requires registration) says that 19 European libraries have decided to collaborate to put some of their contents on the Web.

The second, from SV.COM, says 6 EU leaders have proposed a European digital library. The latter effort is probably at teh behest of French President Jacques Chirac, who was worried that Google's project was just another form of US imperialism being visited upon world culture.

As I said when I first heard his reaction to the Google project, even if he doesn't understand what's going on, it does wonders for publicising the need for open access.

Thursday, April 28, 2005

CE Petit is angry at what he considers to be the "whitewash over command responsibility at Abu Gh'raib."

"Phil Carter, over at Intel Dump, has penned a remarkably even-tempered (if ultimately condemning) response to the whitewash over command responsibility at Abu Gh'raib. In his first update, he concludes:

Despite these generals' findings, none of the officers responsible for facilitating these abuses will face criminal charges. Or, put another way, the Army IG has wholly disregarded the record evidence before him to arrive at an arbitrary and capricious decision that the senior Army leaders involved should face no legal consequences for their actions. What kind of message does that send to our junior military leaders? What kind of message does that send to the world?

This is a lot more generous than I would have been. It's taken me three days to keep the venom in this message to a publicly displayable level."

Bob Frankston's "favorite story from what I think of as the T.S.A. Follies...

...A uniformed pilot waits impatiently at a checkpoint for 10 minutes while two screeners from the Transportation Security Administration scrutinize every item in his carry-on bag. After he was allowed to go on his way, he explained why it took so long. “They told me they had to make sure I wasn’t carrying anything that would allow me to take over an airplane,” he said, rolling his eyes."

"By now, you’ve probably heard that the bill passed in mid-April. You may have heard that Public Knowledge and other pro-balance forces were not outraged by this bill.

Neither am I. I believe the provisions of this bill are all worthwhile (although one of them should not be necessary) and that its passage may relieve pressure to pass seriously defective copyright legislation. Maybe it’s my optimistic nature, but I see this as a case where a tweaking of copyright balance may stall serious unbalance. Some other people who I consider thoughtful and reasonable disagree."

EU Law Web Log has an important story about a European Court of First Instance case. It's probably one mainly for the legal junkies but has important knock on effects for private actions against large organisations.

An Austrian consumer advocacy group asked the Commission for access to documents regarding their 2002 ruling that 8 Austrian banks operated a cartel prohibited by EU regulations. They wanted these details to re-enforce a case against one of the banks which they were pursuing through the Austrian courts. The Commission, as is the first reaction of many administrators, refused access to the documents. The Court of first instance, however, has just ruled that they were wrong to do so and ordered them to hand over the documents.

The more I hear about the actual operation of the European Commission, the more concerned I become about how many general sound governing principles can be overlooked or deliberately compromised in its day to day operations.

It's not primarily that officials set out with the intent of undermining principles - most of them would be horrified at the thought that they might be doing so. But in any complex administrative infrastructure (i.e. this is not exclusive to the EU and will also apply to any large commercial organisation) billions of activities have to take place at the microscopic day to day level and people administer and work with these [organisationally] microscopic activities in ways that enable them to do their day to day jobs.

The trouble is that collections of organisationally systematic, logical and sensible activities/or decisions within the context of those microscopic systems can add to to macroscopic systemic chaos for the organisation as a whole. This is compounded by the fact that many of the administrative systems are contradictory and mutually exclusive or incompatible and yet officials are still obliged to somehow make them work. Remarkably they usually manage this with commendable ingenuity and efficiency because people are very clever at finding practical ways to make systems work...

But you end up, as in this instance, with the European Commissioner declaring that the Commission sees private litigation as a key complement of public enforcement of EU competition rules, and yet when someone does pursue such private litigation, Commission officials refuse to cooperate and release key information for pursuing the case; and these officials have logical and defensible reasons within the context of their own work practices and systems for refusing to disclose the documents.

The consumer organisation are then forced into further litigation at a European level to get access to documents the Commissioner has implicitly suggested that should have been available to them as a matter of principle.

I see parallels here with degree to which professionals can set thinking traps within the context of their own professions. It might seem perfectly reasonable, for example, to a group of intellectual property lawyers that a colleague sends out a cease and desist letter warning someone that they should not use their own name because it happens to be the same name as a famous client she represents. If IP rules are written in such as way as to allow her to do this then she is acting perfectly reasonably within the context of those rules to protect the interests of her client. Most ordinary folks, however, would think it completely ridiculous that someone could be sued for using their own name.

There's probably an academic paper, if not a book, in this line of thought but I'll leave it there for the moment!

Wednesday, April 27, 2005

The EU's new competition Commissioner, Neelie Kroes, apparently told Steve Balmer yesterday that Microsoft was not doing enough to comply with the sanctions applied last year over the company's breach of EU antitrust regulations. A Commission spokesman told the BBC that "Ms Kroes said that the Commission expects the decision adopted in March 2004 to be complied with urgently and in full, and she added that unless this was the case that the Commission would be obliged to take formal steps to ensure compliance."

Celera, the company which raced the public Human Genome project to sequence human DNA, have decided to stop selling subscriptions to its genome database.

John Sulston, nobel prize winner and the head of the Human Genome Project in the UK co-wrote a wonderful book with Georgina Ferry about the whole story and was quite scathing about the attempts to privatise what he saw as our shared human heritage. He worked tirelessly and passionately with many colleagues to ensure the sequence would be freely available and will no doubt view this latest development with quiet satisfaction.

Jenny Levine and Michael Madison, given their recent ruminations, might be interested in an article in the first issue by Dorothy E. Salonius-Pastenak of the Harvard Medical School Center for Mental Health and Media. Abstract:

"Most research on electronic play has focused on its possible negative effects for children and adolescents, and contextual factors such as socioeconomic status (SES) and culture are rarely considered. This article considers the potential benefits of electronic play from a psychological perspective, as well as individual and contextual factors that may shape the influence of electronic play for children and adolescents. Demographics of players and the games themselves are presented, and recommendations for research and policy are discussed."

This actually covers some similar ground to the John Beck interview mentioned by Jenny, where he makes quite a lot of sense about the positive benefits of games. If they don't already know each other, Dorothy E. Salonius-Pastenak and John Beck would do well to talk about their shared interests.

RealNetworks have hit on a new business model, according to the NYT. They've decided to give some music away free in an attempt to attract customers.

"Yesterday, Real introduced a version of its Rhapsody music service that allows nonsubscribers to listen to 25 songs free each month. Users are welcome to listen to one song 25 times or any 25 songs from its million-song library once, or any combination. Real hopes that making it as easy to try its service as it is to obtain songs illicitly through a file-sharing network like Kazaa will draw new paying customers."

"A bill introduced Monday by Sen. Rick Santorum (R-Penn.) would prohibit the lungs of U.S. citizens from competing with companies such as Air Products Inc., which sell compressed oxygen to hospitals, clinics and other medical institutions. Under the proposed law, Americans would be required to purchase the air they breathe from a commercial vendor rather than inhaling it naturally from the earth's atmosphere."

"Recent “scandals” involving charges of plagiarism by professors and other writers treat plagiarism as (1) a well-defined concept that (2) is unequivocally deserving of condemnation. It is neither. Take the second point first. The idea that copying another person’s ideas or expression (the form of words in which the idea is encapsulated), without the person’s authorization and without explicit acknowledgment of the copying, is reprehensible is, in general, clearly false. Think of the remarkable series of “plagiarisms” that links Ovid’s Pyramus and Thisbe with Shakespeare’s Romeo and Juliet and Leonard Bernstein’s West Side Story. Think of James Joyce’s Ulysses and of contemporary parodies, which invariably copy extensively from the original—otherwise the reader or viewer would not recognize the parody as a parody. Most judicial opinions nowadays are written by law clerks but signed by judges, without acknowledgment of the clerks’ authorship. This is a general characteristic of government documents, CEO’s speeches, and books by celebrities.

When unauthorized copying is not disapproved, it isn’t called “plagiarism.” Which means that the word, rather than denoting a definite, well-recognized category of conduct, is a label attached to instances of unauthorized copying of which the society, or some influential group within it, disapproves."

Jason Shultz has witnessed what he calls a "fabulous presentation (9MB MP3)on the band's legal run-in with Sony over the composition rights to the Beatles songs they parodied and how Lars Ulrich redeemed himself from the dark days of fighting Napster by defending the band's fair use. "

Michael Madison has been pondering the value of reading and playing as learning methods.

" My take is that the “rules” that we learn via reading are broadly applicable, well beyond the world of literature, and well beyond the world of creating art on our own...

Does playing work at those same broader levels, or does the feedback from playing teach players (merely) the rules of the games themselves? That’s a genuine question, though what little gaming I’ve done over the last 30 years hasn’t taught me too much that I can use outside the world of games. I do, however, have pretty good hand/eye coordination. My students tend to be gamers, not readers, and they tend to have a very difficult time seeing or constructing narratives in the law."

Playing shouldn't be set against reading any more than privacy should be set against security and Michael himself says that "The dichotomy between “reading” and “playing” is a false one." Both have their merits. His thoughts have been triggered by a satirical extract from Steven Johnson's book "Everything is Bad for You", where he wonders what would have been the reaction to books if computer games had pre-dated them.

"I’m late to the whole gaming and how it affects libraries thing, but I’m a total convert now and it’s something I’m going to actively track from now on. At first I thought it was just interesting, and while I did like the idea of bringing tweens and teens into the library using gaming as a social carrot, I’m gaining a totally different perspective for the way we can use the characteristics, expectations, and interplay of gaming and gamers in a “tipping point” kind of way.

From Findlaw, "A French court has ordered DVD vendors to pull copies of the David Lynch film "Mulholland Drive" off store shelves in France as part of an unprecedented ruling against copy protection techniques."

Derek Slater has some interesting comments on DRM and DMCA. He reckons DRM critics (like me I guess) are misdirecting their criticism.

"So I don't mean this to be exhaustive - I'm more interested in framing the issue. First, again and again, people in this arena end up discussing banning DRM when the issue is the DMCA. Take the digital music interoperability hearing. Few are seriously suggesting that we ban certain DRM and mandate interoperability. Those who worry about the social welfare decreasing effects of the iPod-iTMS tie see the DMCA, rightly, as the culprit. The usefulness of the DMCA, not DRM, is what we should be questioning.

Second, along with the costs in terms of fair use, innovation, et. al resulting from DRM and the DMCA, we have to take seriously the benefits the DMCA might provide in terms of enabling certain business models and certain consumer choices. To do so, we have to focus more on whether structuring copyright around this "right of access" is really what we want - if we're, for instance, going to view fair use through the lens of market failure."

DRM will eventually become obsolete because people with get fed up with it but we should recognise the importance of interoperability and the potential for big players to distort and lock in market structures, which it will be difficult to dismantle once in place. On his question about building copyright on a "right of access" foundation, that is something I am opposed to. Why? Because people should not be allowed to stake an exclusive permanent property claim to an idea by constructing a digital fence around it. Thomas Jefferson puts it infinitely better than I ever could:

"It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation."

"The United States and to a lesser extent the European Union are trying to force international institutions as well as less powerful nations to adopt a wide variety of bad policies as part of the so-called “war on terror.” Often this includes trying to push unpopular and regressive policies that the U.S., the EU and its 25 member states cannot get imposed domestically through international organizations as a “back door” means of adoption.

In short, security officials across many nations are increasingly “going global” – not only striking cooperative agreements with each other but also working together to escape domestic legal and political controls by working through international organizations. It is vital that civil liberties organizations, privacy offiicials, and others with an interest in overseeing law enforcement learn to similarly operate at a global level lest officials succed in pushing through out-of-balance security policies that do not reflect other important values such as privacy and fairness.

This Website is intended to serve as a central clearinghouse of information and advocacy materials to help citizens, governments, and civil society groups to monitor international bodies and combat the strategy of policy laundering."

Mozcc is a nice add-on to Firefox for creative commons aware websurfers. It installs very quickly and puts a cc logo in the Firefox status bar. Then for suitably tagged webpages offered under a creative commons licence, symbols appear in the status bar showing which licence the page is offered under. Click on the symbol and you get the details of the licence.

My colleague, Tony Hirst, alerted me to Mozcc by telling me that our internet law course does not have the appropriate tags to recognise and make use of it!

Paul Miller of the Common Information Environment clearly approves of this kind of utility.

I had the pleasure of meeting Karlheinz Brandenburg and Kees Schouhamer Immink at the IEEE International Consumer Electronics Symposium held in Reading last year, two unsung pioneers of the digital entertainment revolution. I've just discovered that the BBC have done a short guide to one of Karlheinz's big contributions - the invention of the MP3 standard.

"However, behind the huge business headlines and ringing cash registers remains a story that has remained mostly untold; the story of a man whose combined knowledge of maths, sound and electronics brought the whole thing about - but, amazingly, for no personal profit.

It is also a tale of how a small scale German government project to explore how music could be fed down a phone line later helped create an Internet music standard which has all the hallmarks of becoming a postfix to stand alongside audio CDs and PAL televisions."

Kees invented CDs (amongst many other things). So well done BBC for recognising Professor Brandenburg's contribution but it could do with updating and let's see a similar tribute to Kees Schouhamer Immink.

Dan Hunter wrote a great piece in Legal Affairs last April about the student "Free Culture" movement being started by the Swarthmore students, who had got into a legal dispute with voting machine manufacturer Diebold Systems. It's hard to believe they've been going for a year already and they now have 10 branches (or chapters) around the US.

"Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems - Napster, Gnutella, KaZaA, Grokster, and Freenet3 - are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony substantial noninfringing use defense. The digital cassette recorder begat the Audio Home Recording Act. The internet begat the Digital Millennium Copyright Act. Napster begat Napster. We see the law morph right in front of our eyes, but its ultimate form is still obscure. As a consequence, the future of copyright is up for grabs. We live in a magical, exhilarating, and frightening time: Many alternative copyfutures shimmer on the horizon, sometimes coming into sharper focus and sometimes fading away.

In this heady atmosphere, the idea slingers are at work. Richard Posner and William Landes have proposed indefinitely renewable copyrights. Neil Netanel, William Fisher, and others propose to legalize P2P filesharing...

No copywarrior is more prominent and influential than Larry Lessig...

This essay examines the ideas in Free Culture in the context of current controversies over the future of copyright."

A journalist in Forbes magazine thinks the "EU has funny ideas about human rights...

...news stories from assorted Old World democracies make a persuasive case that they badly need a First Amendment over there. Not impeded by one, governments engage in a degree of speech suppression unimaginable in the U.S."

Hmmm I'm a big fan of the first amendment in many ways and I also happen to agree that you can drive a coach and horses through the get-out clauses for government (eg in the UK) in human rights legislation, but pots, kettles and black come to mind here, given the systematic dismantling of the US Bill of Rights that has been going on in recent years, as well as the history of the abuse of rights of certain groups in the US...

No political system can guarantee respect for civil rights. Only the constant vigilance and commitment of the people can do that.

Monday, April 25, 2005

With further thanks to Michael Geist for this link, it seems that former UK Prime Minister, Margaret Thatcher, has decided to sue the BBC for using her phrase "treachery with a smile on its face" rather too frequently when advertising Thatcher week last year. Rather ironic that the BBC should get sued for advertising.

Senator Rick Santorum has apparently introduced a bill that would ban the National Weather Service from providing free weather data. (Thanks to Michael Geist for the link).

What an idiotic idea and another example of evidence free law-making proposals so criticised by James Boyle. James actually uses the weather service as an example in the latter example of how the US are currently getting things right:

"Take weather data. The United States makes complete weather data available to anyone at the cost of reproduction. If the superb government websites and data feeds aren’t enough, for the price of a box of blank DVD’s you can have the entire history of weather records across the continental US. European countries, by contrast, typically claim government copyright over weather data and often require the payment of substantial fees. Which approach is better? If I had to suggest one article on this subject it would be the magisterial study by Peter Weiss called “Borders in Cyberspace,” published by the National Academies of Science. Weiss suggests that the US approach generates far more social wealth. True, the information is initially provided for free, but a thriving private weather industry has sprung up which takes the publicly funded data as its raw material and then adds value to it. The US weather risk management industry, for example, is ten times bigger than the European one, employing more people, producing more valuable products, generating more social wealth. Another study estimates that Europe invests €9.5bn in weather data and gets approximately €68bn back in economic value - in everything from more efficient farming and construction decisions, to better holiday planning - a 7-fold multiplier. The United States, by contrast invests twice as much - €19bn - but gets back a return of €750bn, a 39-fold multiplier. Other studies suggest similar patterns in areas ranging from geo-spatial data to traffic patterns and agriculture. “Free” information flow is better at priming the pump of economic activity."

A couple in Ohio who got threatened by the RIAA and settled out of court for $3000 have decided to sue the file sharing company that they reckon got them into the mess in the first instance.

"Sally and Jim Wilson were frightened in February when they learned the recording industry had sued them because their two teenage daughters had downloaded 653 songs - and that they could be liable to pay $750 for each...

The Cold Spring couple has agreed to settle for $3,000. Next week, the Wilsons plan to sue an Australian-based company, Sharman Networks Ltd., whose popular peer-to-peer Kazaa software the girls used."

The only thing that really surprises me about this is that it has taken so long for this kind of case to arise. Given the thousands of people subject to file sharing lawsuits who have handed over thousands of dollars to the RIAA I expected this to happen much sooner. It will be an interesting one to watch and though I don't hold out much hope of success for the Wilsons, the outcome of the Grokster supreme court case may have an influence.

I just got some very interesting recommendations on useful law resources on the web from Jean Pajerek at Cornell

"Center for Individual Rightshttp://www.cir-usa.org/

The Center for Individual Rights (CIR) is a nonprofit public interest law firm dedicated to the defense of individual liberties, focusing on the areas of Civil Rights, Free Expression, Religious Liberty, and Federalism...

Copyright Management Centerhttp://www.copyright.iupui.edu/

The Copyright Management Center (CMC) website is a useful guide to copyright issues specifically affecting teachers, researchers, and librarians. Indiana University-Purdue University Indianapolis created CMC in 1994 to provide its faculty and staff with clear guidelines to understand the complex world of copyright protection...

Curiae.law.yale.edu: the Curiae Project http://curiae.law.yale.edu/

The Curiae Project, currently in beta testing, provides historic (pre-2000) Supreme Court case materials free of charge. After selecting a case, the user can link to the full text of the case (via FindLaw and LII), listen to audio recordings of oral arguments before the Supreme Court (as available via Oyez), and view records, briefs, and other printed documents related to the case (as available via Curiae)...

Frederick K. Cox International Law Center War Crimes Research Portal http://law.case.edu/war-crimes-research-portal/

The Frederick K. Cox International Law Center War Crimes Research Portal is a product of the Case Western Reserve University School of Law. The Portal contains over a thousand links to websites related to international humanitarian law and international criminal tribunals"

Cornell law librarians review and recommend useful web resources as part of their Insite service. The Yale Curiae project is particularly worth a look.

"Thomas Macaulay told us copyright law is a tax on readers for the benefit of writers, a tax that shouldn’t last a day longer than necessary. What do we do? We extend the copyright term repeatedly on both sides of the Atlantic. The US goes from fourteen years to the author’s life plus seventy years. We extend protection retrospectively to dead authors, perhaps in the hope they will write from their tombs.

Since only about 4 per cent of copyrighted works more than 20 years old are commercially available, this locks up 96 per cent of 20th century culture to benefit 4 per cent. The harm to the public is huge, the benefit to authors, tiny. In any other field, the officials responsible would be fired. Not here.

It is as if we had signed an international stupidity pact, one that required us to ignore the evidence, to hand out new rights without asking for the simplest assessment of need. If the stakes were trivial, no one would care. But intellectual property (IP) is important. These are the ground rules of the information society. Mistakes hurt us. They have costs to free speech, competition, innovation, and science. Why are we making them...

Let me be clear. IP is a good thing... Not all proposals to extend rights are silly, but if we do not start looking rigorously at evidence, we will never know which."

"The power of ideology (which I would define as a simplified explanation of how the world works) is that it generally does work – that’s why it becomes accepted. Developing a good model gives one advantages – the ability to anticipate outcomes and act with confidence upon that expected outcome. However, that success also leads the user to confuse the model of reality with reality itself and, eventually, the ideology disappears – “Why is more copyright protection better? That’s just how things work, stupid.”

As long as the model works, that confusion is not a problem. But when the model starts to fail (as it inevitably must), the dogmatic ideologue is in serious trouble – the explanations for how the world works sudden no longer work, and the easiest response (and most typical) is to argue away (or ignore) the inconsistencies and press on.

That’s where we are now. The inconsistencies cited in Boyle’s article and elsewhere are all around us, but the ideologues just keep repeating their mantra “more control/property/market discipline is better.” The ideology is now visible, at least to those who do not accept it, and the inconsistencies keep piling up – and the non-dogmatists have started to develop a better, more refined model for reality, one that allows them to be more successful, and have started to move on.

The danger lies in spasms of the ideologues whose explanations no longer help, but who still have the power to construct structures that enforce their world-view."

Which nicely takes me back to our Open University course on all this. In there we deal with both the concept of models and the power of ideology and the need to be continually alert to both. We also felt that the power of rhetoric and the invisibility of underlying facts, values and beliefs are so important that we devoted a whole section of the course to this.

Human Rights Watch have called for "a special prosecutor to investigate the culpability of Secretary of Defense Donald Rumsfeld and ex-CIA Director George Tenet in cases of detainee torture and abuse," in a report issued just prior to the first anniversary of the torture at Abu Ghraib prison coming to light.

On another front, which seems to have long since left the public arena, the Bush administration were criticised for leaking the identity of a CIA agent, Valerie Plame Wilson, the allegation at the time being that the leak was a malicious act arising in response to the administration's frustration at criticism by the agent's diplomat spouse, Joe Wilson.

A special prosecutor has been looking into the circumstances surrounding the leak and John Dean has an update on the investigation over at Findlaw. There are lots of interesting aspects of this case but the one Dean focusses on is the involvement of two journalists with an apparently peripheral involvement in the leak and the special prosecutor's attempts to get them to divulge sources to a grand jury. There is the strong framework of an investigative thriller in all this, when the story finally comes to be told.

John has a terrific column in the Observer this week about the BBC Creative Archive. Introducing it in his online diary, he says:

"My Observer column on the significance of the Creative Archive is here. The Open University, for which I work, is one of the Creative Archive partners, and is currently mulling over how it should contribute to it. In the meantime, one of my colleagues, Ray Corrigan, has released the materials for his course on Law, the Internet and Society under a Creative Commons licence. The course started life as part of my Relevant Knowledge programme, but was dropped when it came to the end of its designated life. It seemed crazy just to bury something that could be useful and interesting to many people simply because the university didn’t have space for it in its curriculum. So now it has a new lease of life, courtesy of the open content movement."

What he doesn't say is that he also wrote part of the course (which along with being highly regarded by experts from universities like Duke, Stanford and Cambridge should give you an idea of the quality of the material) but a mention on Memex 1.1 will, no doubt, have given the site readership a significant boost. Thanks John!